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A Snapshot of our Recent Activity — Insurance Law

A brief portrait of cases and activities of RSS’s Insurance Law Practice Group over the past few months

Active Despite the Coronavirus

The pandemic has not spared the legal community. However, as legal services were quickly declared essential services by the Quebec government, we were able to maintain our activities.

On March 13, 2020, Quebec declared a state of emergency following the COVID-19 pandemic that led the government to put in place certain measures. These included the suspension of deadlines and prescriptions until further notice. Activities in courthouses were also suspended. The result was that, until recently, only urgent proceedings, as decided by the Chief Justice of the Superior Court, have been heard.

As a result, few insurance cases were heard. Activities gradually resumed in Quebec courthouses as of June 1, which was welcomed by the legal community. Of course, telltale signs appeared, such as plexiglass panes in courtrooms and restrictions to circulation in courthouses. Each judicial district is subject to its own rules. As activities resumed, to avoid possible rushes and to ensure that our files would be processed in a timely manner, we resumed issuing and filing proceedings. Those are sent through the secure computer systems of the bailiffs. The pandemic has also led to the long-awaited implementation of a digital court registry system through which lawyers can send proceedings and related documents online. In addition, courts now assess evidence using various technological means and lawyers conduct discoveries using such means. The legal community adapted to the changes brought about by the pandemic. It seems that the negative impact of the virus has led to progress in the way that law is practiced, an evolution that will be necessary for the future.

A new reality quickly took hold: working from home, and videoconferencing debates. Many of our lawyers have conducted interrogations via technological means, allowing cases to be resolved efficiently, to the satisfaction of clients.

For example, Jean-Philippe Savoie participated in a settlement conference in May that was held through Microsoft Teams and lasted an entire day; discussions took place before the judge in five “virtual rooms”:

  • A plenary room;
  • Plaintiffs’ private room;
  • Defendant’s private room;
  • Private room of the co-defendant city, our client;
  • A common room for all defendants.

What was originally a claim of nearly $430,000 was settled, to the parties’ satisfaction.

But the impact of the pandemic was not limited to procedural issues: substantial legal issues were also affected.

Since the middle of March, Benoît Chartier has been assisting the Association des stations de ski du Québec and its member stations on various legal issues arising from the COVID-19 crisis, especially those related to policies on refunds or postponing the availability of services purchased given the hasty end of the ski season ordered by the Quebec government.

In early May, Benoît, along with Zachary Ouimet, were retained to protect the interests of an excess insurer indirectly involved in a class action launched by Quebec companies against several insurers based on their refusal to compensate business losses caused by the COVID-19 crisis.

Finally, in June, Benoît was retained to file claims against a “big box” retailer and an online reseller of products sold by our clients but unpaid by either defendant because of alleged difficulties caused by the crisis.

Jennifer Hansen was asked to issue coverage opinions in connection with claims for compensation for the interruption of commercial activities due to COVID-19.

As Jeanine Guindi noted, the fear that litigation files would be affected by delays caused by the disruptions arising from COVID-19 had the effect of encouraging the parties to make sustained efforts to resolve their disputes. Jeanine had a case that was scheduled for hearing in April, but that was obviously postponed. The parties, while setting new hearings in September 2021, negotiated intensely to avoid having to postpone, and reached an agreement that pleased the parties, while avoiding the costs of litigation.

Jennifer Hansen made the same observation: a case that led to fruitless settlement negotiations in 2019 was finally settled a few weeks before what was expected to be a nine-day trial scheduled to begin in June.

In Saguenay, an environment less affected by the COVID-19 crisis, the Regional Bar and the judicial community have been particularly proactive in allowing for a rapid recovery. Thus, activities are already returning to their normal course, in accordance with the rules of social distancing. Courthouses in the region have resumed hearing non-urgent cases.

The Million-dollar Circle

Ariane Légère-Bordeleau has been busy with the following files:

  • Several lawsuits following the Bell Media Tower fire in Montreal on July 13, 2018, totalling nearly $22 million;
  • Several lawsuits following the fire at the Louis-St-Laurent Building in Gatineau on April 21, 2016, totalling more than $128 million;
  • Several lawsuits filed following heavy rains and flooding in April 2019 on the territory of the municipality of Beauceville, totalling more than $2 million.

Jennifer Hansen and Michel Green are defending an American manufacturer in a dispute arising from alleged exposure to radiation at work. Many applicants report health problems ranging from sleep apnea to cancer. Claims amount to more than $20 million.

Patrick Henry has handled several construction, product liability and personal injury cases, each involving more than stakes in excess of $1 million.

Finally, Élisabeth Laroche defended an insurer against whom an individual intended to sue for poisoning he allegedly suffered while working in a laboratory in Norway. However, the claim had not been filed in accordance with the prescribed terms and conditions; in addition, the plaintiff claimed no less than $370 million, citing frivolous grounds. Unsurprisingly, the application was rejected…

Class Actions

On April 1, in a case handled by Pierre Brossoit, the Superior Court rejected an application for leave to bring a class action against our client, the Autorité régionale de transport métropolitain. The application was based on disruptions to rail service on the Deux-Montagnes and Mascouche commuter lines due to the construction of the REM public transit system.

Pierre is also defending the manufacturer of a part used in snowmobiles against an action alleging a manufacturing defect that would cause premature wear. The parties are awaiting a hearing date on the application for authorization to institute the class action.

Finally, with the collaboration of Eloïse Robichaud, he represents the insurer of a professional association of optometrists against a class action to reimburse costs charged by health professionals for care that should be covered by the government regime. The application for authorization to institute the class action before the Superior Court is suspended, pending the judgment of the Court of Appeal on a preliminary issue.

Benoît Chartier and Hugues Duguay were appointed to represent Lloyd’s insurers in a “Wellington” application brought by a City against the insurers, in connection with a multi-million dollar class action that was authorized against the City for alleged neighbourhood disturbances complained about by citizens.

Nick Krnjevic and Benoît G. Bourgon are defending an insurer in a class action brought by shareholders alleging that the value of their shares was diminished by the defendants’ fault.

Benoît represented a soil inspection firm for the approval of the settlement of a class action. The client had been called in warranty for a claim against a municipality for issuing building permits on unstable land.

Yves Cousineau was consulted in relation with a class action for sexual assault.

Professional Liability

Fabienne Beauvais successfully defended a notary called in warranty in a claim arising from the sale of land subject to restrictions under the rules on the protection of agricultural land. This decision illustrated the rule that not all persons who may have had a minimal connection to the case can be impleaded.

Marika Douville represented a notary who had received an amendment to a deed of ownership, an amendment which the plaintiff sought to have annulled. Marika invoked section 209 of the Code of Civil Procedure, a seldom-used provision, to raise a question to the Court at the outset of the hearing on a point of law that could end the dispute. The Court recognized, as Marika argued, that just because a party asks for the nullity of an act does not mean that it must have it declared a forgery. This conclusion simplified the judicial debate and removed our client from the litigation.

Marika also defended a naturopath who allegedly made defamatory comments on social media involving a personality well known in showbiz.

Finally, she is acting for the defence in a lawsuit brought by a woman who suffered a miscarriage and argues that the problem was caused by a deficiency of the sperm used in the insemination procedure.

Katherine Delage, Jennifer Hansen and Ann-Julie Auclair defended a lawyer against a claim alleging that she committed abuses of process in litigation against the plaintiffs.

Alice Bourgault-Roy defended a notary against an application for a safeguard order based on her alleged eagerness to liquidate an estate.

Nicolas Pfister defended a notary called in warranty in a case of misrepresentation that affected the investments made by the plaintiffs.

Pierre Brossoit and Ann-Julie Auclair defended a lawyer against a $2-million claim alleging that she had breached her duty to advise on a contract that had proved unfavourable. The claim was dismissed because it was the plaintiffs who, by their false statements meant to create a fraudulent situation, put themselves in a bad situation.

Stéphanie Beauchamp filed an application for dismissal against a $100,000 professional liability claim against a notary. Two other defendants made similar applications. The judge allowed all three applications on the bench, concluding that, on the face of the proceedings, it was clear that neither the notary nor the other defendants had committed a fault.

Stéphanie argued another professional liability case against a notary before the Superior Court on June 17. As this case did not require a lengthy hearing, it was classified as a priority. The case was heard in person, but in “paperless” mode, with all documents previously sent electronically to the court. The $305,000 claim against the notary was dismissed, as the judge found that our client had not committed any wrongdoing in the drafting of the order notes at issue.

Arbitration

On March 17, Pierre Brossoit issued an arbitration award under the Regulation respecting the guarantee plan for new residential buildings. The application related to defects in the construction of a residential building that caused water infiltration. The effectiveness of the arbitration process was illustrated by the fact that the award was rendered less than a month after the hearing.

In July 2018, the Treasury Board followed up on a recommendation by the Charbonneau Commission by launching a pilot project to facilitate payment to businesses parties to public construction contracts. Shortly thereafter, Pierre Brossoit was appointed to act as an adjudicator on this project. He recently issued a decision in this capacity in a case involving a repair to a transportation infrastructure.

The Wide Variety of Insurance Cases

Mariella De Stefano instituted recovery proceedings on behalf of Lloyds’ Underwriters against a manufacturer of massage oils and gels pursuant to a fire that originated in a dryer. The basis is the manufacturer’s duty to inform on the dangers and use of its products.

Mariella also instituted recovery proceedings on behalf of Underwriters for a significant amount of money against a tenant for a fire resulting from the alleged disposal of a match in a plastic bag.

Ariane Légère-Bordeleau is acting in a lawsuit instituted by media giants (Bell, Videotron, Rogers, etc.) for alleged copyright infringements using decoders. Ariane represents two defendants among some 50 manufacturers, distributors, and sellers. The amount of damages claimed by the plaintiffs is very substantial.

Benoît Chartier and Zachary Ouimet were retained by a US law firm to enforce Letters Rogatory in Quebec. The purpose of this procedure is to obtain the assistance of the Quebec court to constitute evidence that will be used in a US court.

Benoît was also retained by a US manufacturer of automated cow milking systems to oppose a lawsuit of more than $1 million in connection with an alleged product defect.

Jennifer Hansen and Jeanine Guindi act as a pre-purchase inspector defending a claim of more than $450,000 for apparent or hidden defects that he allegedly ignored and that affect almost the entire building.

Jennifer also represents an insurer against a claim filed by a financial institution for the payment of the remainder of a mortgage granted to our client’s insured, who was allegedly engaged in illicit activities.

Alice Bourgault-Roy has been very busy lately, with a multitude of files:

  • Recovery from the failure of a sprinkler in a senior’s residence that caused hundreds of thousands of dollars in damage;
  • Recovery against an electrical contractor following a fire in an apartment building;
  • Recovery from the sale of a stolen car to an automobile dealership;
  • Recovery against a municipality following a failure of a water pipe that caused approximately $100,000 in damage to a healthcare facility;
  • Defending a professional in connection with the sale under court authority of a condominium unit for a co-owner’s failure to pay common charges;
  • Defending a professional prosecuted for abuse of process as a result of the testimony given in favour of his client at a trial;
  • Defending an adventure park in connection with a zip line accident;
  • Defending a big box store after the fall of a customer at the entrance to the store;
  • Defending a shopping centre following a fall on an ice sheet;
  • Defending a construction company following a death resulting from a fall on the carpet of a building under renovation;
  • Defending a supermarket against a lawsuit for damage to an eye caused by a hook that caused eye injuries;
  • Obtained the abandonment of proceedings in a claim against a city alleging inaccurate entries in an assessment role;
  • Obtained the abandonment of proceedings against a plumbing contractor following a major water damage in a condominium building.

Yves Cousineau and Marc-Olivier Brouillette are defending against a claim by the owner of a property whose retaining wall has collapsed as a result of work carried out on the neighbouring land.

Yves, along with Marcel-Olivier Nadeau, are contesting a claim for latent defects following a fire in a house allegedly caused by a construction defect of the chimney.

Patricia Baram defended a flooring installer and its liability insurer for damage to the floors of apartments in a rental building. After discovery, Patricia negotiated and convinced the plaintiff to abandon the claim.

Patricia also defended the maker of an insulating membrane used to build an odour treatment plant damaged in an implosion. While the claim was approximately $6 million, it was reduced to $58,000 in a preliminary proceeding.

Maro Coric provided coverage advice to a cyber insurer following a ransomware cyberattack perpetrated upon a cloud computing service provider that had an impact upon several insured organizations.

He also provided coverage and settlement advice to an insurer regarding a multi-million-dollar errors and omissions claim, and particularly how several insurance policies respond to the same matter.

Eloïse Robichaud defended an insurer against an insured’s claim for window damage. Coverage was excluded: damage was due to the effect of time rather than a fire that had occurred sometime earlier.

Stéphanie Beaudoin defended an individual who was the subject of a claim arising from an alleged assault. The claim was dismissed as the defendant acted to protect the victims of an attack.

Marcel-Olivier Nadeau defended an Aboriginal council against a defamation claim arising from the disclosure of facts that had otherwise been revealed in various proceedings initiated by the plaintiff himself. Another reason for dismissing the claim was the lack of prejudice.

Béatrice D’Anjou defends a company that built a construction site road on which a crane collapsed.

Justin Beeby and Béatrice D’Anjou act for the City of Varennes, sued for lost revenue, incurred costs and disturbances and inconveniences arising from the City’s decision to award the contract to a third party for its aquatic services previously provided by the plaintiff.

Commitment to the Profession

Last month, Marcel-Olivier Nadeau, in charge of our Saguenay office, was elected bâtonnier (chair) of the Barreau du Saguenay–Lac-Saint-Jean, one of the 15 local sections of the Bar of Quebec. This election is an eloquent demonstration of the esteem in which he is held by the region’s lawyers.

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